- D.Nev.: Affidavits for SWs don’t have to prove the underlying crimes
- D.V.I.: Flyover of curtilage from navigable airspace was reasonable
- NJ: Disputes in the facts on appeal show trial court should have held a hearing
- NY: Second SW for phone a year later after first SW failed to show PC wasn’t timely
- GA: Not objecting to mention of “probation” search at trial was not IAC
ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16) (discontinued 2018)
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book
online since Feb. 24, 2003 Approx. 350,000 visits (non-robot) since 2012 Approx. 45,000 posts since 2003 (25,700+ on WordPress as of 12/31/22)
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"If it was easy, everybody would be doing it. It isn't, and they don't."
“I am still learning.”
—Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property."
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
---Pepé Le Pew
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Author Archives: Hall
OH3: Invalid admin SW was saved by GFE
An administrative search warrant issued under the state criminal procedure law was invalid because of limits on who could request and serve a warrant (i.e., law enforcement officers and prosecutors). However, the good faith exception applies to administrative warrants, too. … Continue reading
CA5: Officer gets QI for shooting into a car under these circumstances
In a case of shooting into a car, “In sum, plaintiffs have not pointed to sufficient authority clearly establishing that Coborn’s conduct violated the law under the specific circumstances he was facing, and thus he is entitled to qualified immunity.” … Continue reading
CA7: Home confinement sentence included a valid search waiver
Defendant was serving a home confinement sentence that included a search waiver. Officers developed reasonable suspicion of another crime and a violation of living conditions. The search was reasonable. United States v. Beechler, 2023 U.S. App. LEXIS 12312 (7th Cir. … Continue reading
LA5: SW improperly suppressed without applying GFE
The trial court erred in not finding the search warrant here was saved by the good faith exception. “Upon review of the application, we find none of the scenarios proposed in Leon are present in this case. Thus, the trial … Continue reading
CA6: Officer observing “forced” baptism of drug offender as 1A & 4A violation gets QI for failure to intervene
A police officer was also a preacher. After a marijuana arrest, he elected to baptize the offender in an Ohio lake. He called Goforth, another officer, to attend, and that officer video recorded it. Later, the offender sued for a … Continue reading
W.D.Tex.: State SW doesn’t deprive federal court of jurisdiction
Federal courts had jurisdiction over defendant’s criminal case despite his initial arrest after execution of a state search warrant. Calzada v. United States, 2023 U.S. Dist. LEXIS 86622 (W.D. Tex. Apr. 13, 2023). Disclosure of the CI who provided information … Continue reading
M.D.Pa.: Driving from source city to NYC on a “super drug corridor” with a prior importation charge wasn’t RS
During the traffic stop, defendant was directed out of the car and back to the patrol car to facilitate issuing a warning. Defendant was from Douglas, AZ and had a prior drug importation arrest. This also led to his patdown. … Continue reading
CA2: Inventory policy here was attached to pleadings and sufficed
The vehicle inventory search was testified to be within ATF policy, which was attached to the pleadings, and it was. United States v. Brack, 2023 U.S. App. LEXIS 12197 (2d Cir. May 18, 2023). Officers observed two people making likely … Continue reading
CA9: SW application made “under penalty of perjury” satisfies the “oath or affirmation” requirement
A search warrant application made “under penalty of perjury” satisfies the “oath or affirmation” requirement. United States v. Morrow, 2023 U.S. App. LEXIS 11933 (9th Cir. May 16, 2023). Defendant prevailed on the merits of his honest services wire fraud … Continue reading
GA: Grant of Franks motion is subject to de novo review
The court erred in finding a Franks violation without considering whether the challenged representation in the warrant was made knowingly, intentionally, or in reckless disregard for the truth. On de novo review, that the trial court erred in finding there … Continue reading
OH3: Officers had PC without regard to what CI said
The officers had probable cause for defendant’s stop without regard to what the CI said, so failure to corroborate the CI had no effect on the outcome. State v. Harrison, 2023-Ohio-1618 (3d Dist. May 15, 2023).* Defendant’s stipulated plea agreement … Continue reading
E.D.Pa.: Hospital nurse who found drugs on def wasn’t state actor
A nurse in a hospital who found drugs in defendant’s pants was required by policy to search the rest of his belongings. The nurse was not a state actor. United States v. Kunsman, 2023 U.S. Dist. LEXIS 84362 (E.D. Pa. … Continue reading
W.D.Pa.: Car parked in driveway was not on protected curtilage
Defendant’s car parked on his driveway was not on the curtilage. It was close to the house, but there was no enclosure or carport like Collins. United States v. Moses, 2023 U.S. Dist. LEXIS 84247 (W.D. Pa. May 12, 2023). … Continue reading
CA2: GFE applies to particularity of SWs too
The good faith exception applies to particularity questions where the officer cannot reasonably be expected to question the scope of the warrant. United States v. Walker, 2023 U.S. App. LEXIS 11798 (2d Cir. May 15, 2023). “Given that a police … Continue reading
CA2: Protective sweep while SW being obtained saved by independent source doctrine
Officers conducted a protective sweep while a search warrant was in the process of being obtained, so the independent source rule applies. United States v. Schleede, 2023 U.S. App. LEXIS 11803 (2d Cir. May 15, 2023). Plaintiff didn’t state a … Continue reading
NYT: Your DNA Can Now Be Pulled From Thin Air. Privacy Experts Are Worried.
NYT: Your DNA Can Now Be Pulled From Thin Air. Privacy Experts Are Worried. By Elizabeth Anne Brown (“New DNA collecting techniques are ‘like catnip”’for law enforcement officials, says Erin Murphy, a law professor at the New York University School … Continue reading
W.D.Tex.: Def’s calling for proof of insurance delayed the stop while drug dog came and alerted
The dog sniff did not prolong the stop – the dog arrived while defendant was calling his girlfriend about bringing his proof of insurance. Moreover, there was reasonable suspicion on the totality. United States v. Lincoln, 2023 U.S. Dist. LEXIS … Continue reading
N.D.Cal.: “A small constitutional violation is no less a constitutional violation” here a cell phone search that is suppressed
The government attempted to access defendant’s cell phone in the jurisdiction but couldn’t. It sent it to Quantico for a “brute force” password attempt that could involve 1,000,000 combinations with waiting periods defined by the software they installed. Some brute … Continue reading